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Culbero v. Lee

United States District Court, Second Circuit

July 8, 2013

LORENZO CULBERO, Petitioner,
v.
WILLIAM A. LEE, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

PAUL A. CROTTY, District Judge.

On June 28, 2011, por se Petitioner Lorenzo Culbero ("Culbero") filed a petition ("Petition") seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On August 1, 2011, the Court referred this matter to Magistrate Judge Ellis. (ECF No. 7.) Subsequently, on March 9, 2012, Culbero filed a motion to amend his Petition to include a claim for ineffective assistance of appellate counsel. On December 26, 2012, Magistrate Judge Ellis issued a Report and Recommendation ("R&R") that the Court deny Culbero's motion to amend on the grounds that amendment would be futile. (ECF No. 17.) For the reasons that follow, the Court adopts Magistrate Judge Ellis's findings and recommendations and denies Culbero's motion to amend his Petition.

BACKGROUND

A. Factual Background and Procedural History[1]

Culbero was convicted in New York State count of two counts of burglary in the second degree under New York Penal Law Section 140.25(2) and one count of criminal possession of stolen property in the fifth degree under New York Penal Law Section 165.40.

On March 9, 2012, Culbero filed his motion to amend his June 28, 2011 Petition before this Court to include a claim of ineffective assistance of appellate counsel, and indicated that he had not included this claim in his original petition because the issue had been pending in state court at the time he filed the Petition.[2]

Culbero argues that his appellate counsel on direct appeal was ineffective for failing to raise a particular argument that Culbero felt should have been included on appeal. Culbero also contends that in an appellate brief his counsel inappropriately referenced the suppression hearing transcript where the witness indicated that a "Lorenzo Culbero" sold stolen property.

B. Magistrate Judge Ellis's Report and Recommendation

Magistrate Judge Ellis recommended that the Court deny Culbero's motion to amend as futile because Culbero's contentions would fail as a matter of law. Magistrate Judge Ellis concluded that counsel did not omit significant and obvious issues while pursuing issues that were plainly weaker, and determined that counsel did not concede Culbero's guilt, but rather pursued a line of argumentation that was strategic and within the bounds of prevailing professional norms, Culbero did not file objections to the R&R.

DISCUSSION

I. STANDARD OF REVIEW

The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by [a] magistrate judge." 28 U.S.C. § 636(b)(1). The Court may adopt those portions of the R&R "to which no objections have been made and which are not facially erroneous, " Wilds v. United Parcel Serv., Inc. , 262 F.Supp.2d 163, 170 (S.D.N.Y. 2003) (quotations omitted). While the Court recognizes Culbero's pro se status and reads his "supporting papers liberally, " Culbero is "not exempt from the roles of procedural and substantive law." DiPilato v. 7-Eleven, Inc. , 662 F.Supp.2d 333, 343 (S.D.N.Y 2009) (citations omitted).

II. ANALYSIS

Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading with the Court's leave, and the Court should freely give leave when justice so requires. Courts, however, may deny leave when amendment would prove futile. Jones v. N.Y. State ...


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